Articles Posted inEstate Tax

The executor or administrator of a New York estate is required to consider many factors when administering an estate. One of the items that the fiduciary needs to review is whether estate taxes need to be paid.

In the year 2017 the Federal Estate tax exemption is $5,490,000. New York State also imposes an estate tax and the 2017 exemption after April 1, 2017 is $5,250,000. While many estates appear not to be subject to the tax, it is necessary that all of the decedent’s assets be properly valued in order to avoid a possible claim by the taxing authorities that a tax or additional tax must be paid. The estate tax must be paid and a return filed within 9 months after the death of the decedent. While an extension to file the return can be obtained for 6 months, any non-payment or underpayment of the tax can result in the imposition of substantial interest and penalty charges. It is not unusual for the Internal Revenue Service or local tax authority to require an audit and to claim that estate assets have been undervalued. This is especially true with business interests and other hard to value assets such as artwork. Continue reading

Estate taxes are an important aspect of estate planning and estate administration. A New York estate planning attorney typically recognizes that minimizing estate tax is important so that the maximum amount of assets can be passed on to beneficiaries for their benefit. The manner in which an individual provides for tax protection will be reflected in the monetary impact estate taxes will have in estate settlement.

At present the Federal government provides an exemption of up to $5,250,000 before estate taxes are incurred. As noted in prior posts in the New York Probate Lawyer Blog all transfers between spouses are exempt from estate and gift taxes. The value of a decedent’s gross estate for tax purposes is determined by adding all of the assets that he had an interest in at the time of death such as real estate, bank funds, retirement funds, stocks and bonds, business interests, etc.

However, under present law in New York the exemption from New York estate taxes is only $1,000,000. The difference in the exemption amounts between the Federal law ($5,250,000) and New York State law ($1,000,000) created difficulty for estate planning since an estate may be able to be exempt under federal law but incur New York State tax. This problem with a high federal exemption and low state exemption is not confined to New York. In a recent post in Forbes.com by Ashlea Ebeling dated November 1, 2013 entitled “Where Not To Die In 2014: The Changing Wealth Tax Landscape”, the problem of low exemption states is discussed. As pointed out in the post, in 2014 the Federal exemption will increase to $5,340,000.00. Thus, an estate of this size will pay no federal estate tax. However, since New York only has a $1,000,000.00 exemption, an estate of $5,340,000.00 would result in a New York estate tax of $431,600.00.

Recently, a commission appointed by New York Governor Cuomo called the New York State Tax Relief Commission, issued a report in which it recommended that New York State increase its estate tax exemption to the same amount as is allowed under federal law (i.e. $5,250,000.00). According to the report, by raising the exemption amount nearly 90% of all New York estates would be exempt from estate tax. This proposal is expected to be considered for passage in the coming year.

Both Federal and New York State estate taxes are important to consider since they can have a large impact on the amount of estate assets that actually pass to estate beneficiaries. I have worked with many clients in planning their estates and in estate settlement where considering the impact of estate taxes was important and the preparation and filing of estate tax returns was necessary.

A New York Estate is subject to potential estate taxes. The tax is imposed under both Federal and New York State laws. The New York Probate Lawyer Blog has previously talked about estate taxes. It is the duty of an estate fiduciary such as an Administrator or Executor to determine whether a decedent’s estate must pay any estate tax and to actually pay the tax.

Both the Federal and New York estate tax is due to be filed and paid 9 months following a decedent’s date of death. An automatic extension of 6 months is available to file the tax return. The information required to be reported is a detailed list of all of the assets, debts, expenses and other financial data that provide an economic snap-shot of an estate.

Estate assets are typically valued as of the decedent’s date of death. This gross estate includes all items owned or controlled by the decedent or in which the decedent had an interest as of his death. Such assets include bank accounts, real estate, stocks, bonds and other items having value such as copyrights, trademarks and membership interests in businesses like a partnership or limited liability company.

During the course of estate settlement, it may be easy to obtain date of death values for assets such as bank accounts, real estate, stocks and bonds. Other items such as business interests may be difficult to value and subject to dispute. Upon the review or audit of an estate tax return, the Federal or State tax authorities may contest the value of an asset or deductible expense or liability.

An example of such estate tax dispute is presently occurring with the estate of the late pop star Michael Jackson. As reported by Patrick Temple-West in Reuters.com on August 23, 2013, the IRS claims that the Jackson estate owes Federal tax and penalties of $702 million. In the article “US Agency says Michael Jackson estate owes $702 million in taxes“, it is reported that the estate claimed in its tax filing, among other things, the image and likeness of Jackson had a value of only $2,105 while the IRS placed its value at $434 million.

Similar tax disputes can arise concerning the value of estate tax deductions such as liabilities, debts or expenses incurred in estate administration. As can be seen, potential estate taxes should be a major consideration in estate planning. This is particularly so when a large estate tax liability is expected and there are limited liquid assets available to pay the tax bill. Since the taxes need to be paid within 9 months after a death, there may be very little time to sell such items such as real estate or a cooperative apartment in order to obtain the funds to pay the tax. In many instances the use of life insurance or other pre-death financial planning can help solve this post-death liquidity dilemma.

At the present time, the Federal estate tax exemption is $5,250,000 and the New York exemption is $1,000,000. Also, both jurisdictions allow an unlimited marital deduction. However, the challenge presented in an estate plan is to limit the tax liability when a potentially taxable estate is to be ultimately paid to a non-spouse. In such situations the taxable amounts cannot be protected by the marital deduction.

It is essential that a New York Estate Planning attorney be provided with information regarding a person’s asset values and possible estate tax deductions. In this manner the appropriate tax plan and beneficiary designations can be formulated in documents such as a Last Will or Living Trust.

The New York Estate Settlement process may require that an Estate Tax Return be filed for a decedent’s estate. Not all estates are required to file returns or pay an estate tax. In New York, the estate value threshold for having to file the return is $1,000,000. The Federal requirement is equivalent to the exclusion amount which for 2013 is a gross value of $5,250,000.

Even in an estate that is required to file a return, no estate tax may be due on account of various deductions such as the marital or charitable deduction or because of debts or liens such as mortgages or other claims. The gross estate value of an estate is comprised of all of the decedent’s assets that are considered under the tax laws to be includable for estate tax purposes. These items include assets that were owned by the decedent in his name alone at death such as bank accounts, brokerage accounts, real estate, etc. The gross estate also includes assets owned by the decedent that were held jointly with a right of survivorship, and other items where there is a named beneficiary such as life insurance, retirement accounts (i.e., IRA’s or 401K’s) and Totten Trusts.

The New York Probate Lawyer Blog has previously discussed that assets owned in a decedent’s own name typically are administered by an Executor or Administrator as part of the administration estate. Property that has named beneficiaries or joint owners is transferred automatically to such beneficiary/joint owner upon the decedent’s death and is not subject to estate administration.

Regardless of the nature of the assets, where an estate is subject to estate tax, the tax must be paid due to the inclusion of such item for tax purposes. The issue that is always presented is what source is responsible for the payment of the estate tax – is it the decedent’s administration estate or is payment the responsibility of the beneficiary or joint owner who received the property. Of course, like many answers in the legal world, the response is “it depends.”

In the first instance, the tax laws generally require that the estate fiduciary (i.e. Executor or Administrator) is responsible for paying the tax.

It is a common practice that a provision in a decedent’s Last Will provides that all of the decedent’s estate taxes be paid from the decedent’s administration estate which is the property owned by the decedent in his own name and passing under the Will. Such a provision would exempt from the payment of the tax any beneficiary of property passing outside of the Will such as insurance or jointly held assets. This result may not be fair to the persons who are beneficiaries under the Will since they are required to pay the estate taxes allocable to the assets passing to the other outside beneficiaries.

In order to avoid an unintended burden of estate taxes being placed on unsuspecting beneficiaries, a New York Estate Attorney will examine a client’s entire portfolio of assets and discuss the tax issues with a client so that estate taxes can be properly allocated.

The basic law in New York is that each asset is to share its allocable portion of estate taxes. These principals are set forth in New York Estates, Powers and Trusts Law Section 2-1.8 entitled “Apportionment of Federal and State Estate or Other Death Taxes; Fiduciary to Collect Taxes from Property Taxed and Transferees Thereof“. Therefore, if there is no specific direction in a Last Will or other instrument that changes this allocation, all of the outside beneficiaries must contribute their allocable share of estate taxes. EPTL Section 2-1.8 even allows the Surrogate to direct such persons to pay their share of the tax.

Estate Administration can be a very complex process. Calculating the amount of estate taxes that may be payable and determining the persons that are ultimately responsible for such payment adds even more responsibility to the job which each Executor and Trustee is required to perform. Since Estate fiduciaries are responsible for the proper payment of estate tax it is important that they obtain guidance from Estate Lawyers and tax professionals so that the interests of the estate and all beneficiaries are protected.

Back at the end of 2010 when the Estate Tax had disappeared for a brief moment in time, Congress and the President agreed on a new and improved version of the law that raised the Federal Estate tax exemption to $5,000,000 for each individual. However, in the combined wisdom of these lawmakers, the modified tax provisions were to take effect for only two years and were scheduled to expire at the end of 2012 as part of the dreaded fiscal cliff. Certainly it did not seem to matter to the leaders that individuals who were engaging in Estate Planning and Gift Planning had no idea as to what plan they should follow after December 31, 2012.

Fortunately, before the bell tolled on 2012, the estate tax exemption of $5,000,000 (adjusted for inflation), was made a permanent structure of the Federal Estate Tax. There was a small change in the estate tax rate that increased the tax rate to 40 percent.

For New York State residents, there was no change to the $1,000,000 exemption. Also, the annual federal gift tax exclusion continues to rise with inflation and is presently at $14,000 for each individual gift.

The law that was recently passed is called the “American Taxpayer Relief Act of 2012”. However, it is questionable whether most taxpayers are relieved since the recent payroll tax reductions are eliminated resulting in fewer dollars in most wage earners paychecks. A summary of some of the most relevant tax changes is set forth in an article by Steve Parrish in Forbes on January 9, 2013 entitled “What the New Tax Law Really Means and New ‘Tax Price Points.’
Since Federal and New York State Estate Taxes appear to be here to stay, it is always a good idea to review an estate plan every few years. New York Estate planning lawyers know that even if there does not appear to be any tax impact, updating documents such as a Last Will, Living Will, Living Trust, Health Care Proxy and Power of Attorney is important to reflect changes in life and beneficiary planning. Estate planning is not just about taxes. The more mundane issues relating to the smooth transfer of assets and avoiding estate battles such as Will contests is always a paramount goal. This is especially true for business owners where estate planning papers and business agreements such as Shareholder Agreements are needed for effective business transition in case of death or disability.